Conflict Resolution

Advanced Problem-Solving Strategies

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Mediators will sometimes tell the parties that the measure of whether a proposed settlement is fair is that it should make both sides equally unhappy. In other words, a party accepting less (or paying more) than they think they should is supposed to be consoled by the fact that the other side feels exactly the same way. I think this is a very negative way of looking at settlement. I tell the parties in a mediation exactly the opposite. I tell them that if they think they will be better off rejecting the settlement and taking their case to trial, by all means they should do that. No one should accept a settlement that makes them worse off than the […]

The resolution of conflict generally starts by looking backward. The parties bring their conflict to a neutral authority, whether a judge, arbitrator or mediator, providing the information necessary to allow someone to sort out who was right and who was wrong, who should pay and how much. Some practitioners in the mediation field are suggesting that mediation should be a more forward-looking process, and need not be as focused as it frequently is on the details of the conflict. When mediation instead asks the parties to think about how their lives might be better without the conflict, or about what aspects of their relationship are positive, then it can truly present an alternative way of resolving a dispute. I heard […]

Some mediators view the parties’ attorneys as an obstacle to achieving a settlement. I do not find that approach constructive. While attorneys may seem to have a vested interest in preventing settlement, more often the attorneys are just trying to get the best possible result for their clients. Attorneys also generally recognize that settlement is more likely to achieve the best result for their clients than taking on the risks and costs of trial. Most attorneys are pretty cautious, and most do not like to lose. That means that the attorneys are generally well aware that there is a good chance they will not be able to get as favorable a result at trial as their client is hoping for. […]

A lot of mediators will start off a mediation with the disclaimer that, unlike a judge, they have no power to decide the case. They are merely there to help facilitate a resolution. This strikes me as an unhelpful way to begin the proceedings. It seems better to remind the parties of all of the benefits of mediation that they cannot obtain in court. For example, mediation can provide an opportunity to make arguments directly to the opposing parties, as opposed to making arguments to a neutral party like a judge. Mediation also empowers the parties to craft their own solution to the dispute, rather than placing them at the mercy of a judge. Mediation makes parties the masters of […]